Robert Tolle v. Rickey Tolle

IN THE COURT OF APPEALS OF IOWA

No. 20-0715
Filed October 6, 2021

ROBERT TOLLE,
Plaintiff-Appellee/Cross-Appellant,

vs.

RICKEY TOLLE,
Defendant-Appellant/Cross-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, Gina C. Badding,

Judge.

Brothers who co-own land both appeal from a district court order that

granted a partition action. Rickey Tolle contests the actual division of the land;

Robert Tolle cross-appeals the condition of owelty payments. AFFIRMED.

Mark Simons of Simons Law Firm, PLC, West Des Moines, for appellant.

Patrick B. White of White Law Office, P.C., Des Moines, for appellee.

Considered by May, P.J., and Greer and Schumacher, JJ. Badding, J.

takes no part.
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SCHUMACHER, Judge.

Robert Tolle petitioned the district court to partition in kind a parcel of land

he jointly owned with his brother, Rickey Tolle. The court adopted the referee’s

proposed division of property. Rickey appeals the partition plan adopted by the

district court. Robert cross-appeals, contending the court erred in conditioning

owelty payments on the removal of a junk pile. Robert also argues the court erred

in the division of costs and refusing to award him attorney fees. We find the court

did not err in its partition of the property, the award of payments for removal of the

junk pile, in the division of costs, or in declining an award of attorney fees. For

these reasons, we affirm.

I. Background

Rickey and Robert purchased a fifty-acre tract of land from their father’s

estate. Each brother paid $20,000. The brothers held the land as tenants in

common. The tract is only accessible by a road running along its northern

boundary. There is a junk pile located on the property’s southwest corner. A creek

traverses the land, running roughly from the center of the property in the north to

the southwest corner. The creek often floods, limiting the use of the land and

making access to portions of the property difficult at times. Additionally, the

flooding and soil quality limits the use of the land as pasture for cattle and horses,

as well as recreational activities like hunting.

After unsuccessful negotiations over how to divide the land, Robert filed a

petition for partition on July 16, 2019. Both parties presented a consent order to

the district court requesting partition in kind. Additionally, both parties agreed that

Robert should take the western parcel of any division, while Rickey would take the
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eastern parcel. The brothers disagreed on how the parcel would be divided to

effectuate this agreement.

A trial was held on February 19, 2020. Robert requested that the court

divide the land into two equally sized parcels. Robert’s proposed division would

follow the creek in the northern-half of the property, but would divert from the creek

and run straight south in the southern-half. The plan would require him to cross

the creek in order to access the southern portion of his property. In contrast,

Rickey sought to divide the land along the creek. Rickey’s proposed division would

result in the east side of the parcel occupying roughly thirty acres while the west

side would contain only twenty acres. Rickey proposed whoever received the

larger plot would pay the other party $800 per acre for the difference in size.

The referee, which both parties agreed to appoint, formulated his own plan.

That plan drew a straight-line north-to-south, producing two equally sized parcels.

The referee’s proposal requires both brothers to cross the creek to access parts of

their property, although the west parcel has significantly more land separated by

the creek. The referee estimated the junk pile on the west side of the property

would cost about $15,000 to remove. He suggested both parties split that cost

evenly because they both had contributed items to the pile. The court ultimately

accepted the referee’s report—dividing the land on a north-south line and requiring

both parties to split the cost of removing the junk pile. Rickey appeals the court’s

decision and Robert cross-appeals.

II. Standard of Review

Partitions of real property are equitable proceedings, which we review de

novo. Iowa R. App. P. 6.907; Newhall v. Roll, 888 N.W.2d 636, 640 (Iowa 2016).
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“In equity cases, the trial court’s findings of facts are not binding on us, but we give

them weight, especially when they concern a witness’s credibility.” Newhall, 888

N.W.2d at 640. Owelty is an equitable remedy that is reviewed de novo. Iowa

Code § 651.1(6) (2020); Iowa R. App. P. 6.907.

The review of an attorney fee award is for an abuse of discretion. Newhall

v. Roll, No. 18-0490, 2019 WL 1294452, at *1 (Iowa Ct. App. Mar. 20, 2019). “A

court abuses its discretion when the grounds or reasons for the court’s decision

are ‘clearly untenable’ or when the court has exercised its discretion to an extent

that is ‘clearly unreasonable.’” Lee v. State, 906 N.W.2d 186, 194 (Iowa 2018)

(citation omitted). We presume the district court’s discretionary decisions are

correct until shown otherwise by the complaining party. Newhall, 2019 WL

1294452, at *1.

III. Analysis

Both Rickey and Robert appeal the district court’s decision. Rickey argues

the court erred in adopting the referee’s proposal for partition of the property. In

particular, he focuses on the impracticality caused by making Robert cross the

creek to access portions of his parcel. Robert maintains the court erred in requiring

him to remove the junk pile prior to receiving reimbursement from Rickey. Robert

also contends the court erred in refusing to award him attorney fees and in splitting

the costs of the action evenly between the parties.

A. Partition Plan

Rickey argues the court erred in using the referee’s plan for the partition of

the property because of the impracticality of Robert having to cross a creek in order

to access the southern half of his property. Rickey seeks to have his own plan,
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which divides the land following the creek, adopted by this court. Iowa Code

chapter 651 governs actions for partition of land. Unfortunately, it provides no

guidance on how courts should select between competing partition-in-kind plans.

The statute merely directs the judge to adopt, modify, or reject the referee’s plan.

Iowa Code § 651.16(5). Two related sections offer some considerations, but

neither is directly on point. First, the factors listed in section 651.31 are relevant

to determining whether to partition in-kind or by sale, not how to select between

competing in-kind plans.1 Similarly, section 651.2 allows courts to partition land in

kind rather than by sale when a party files a request and partition in kind “is

equitable and practical.” Thus, neither is definitive.

Here, the court based its decision primarily on “what will be most equitable

and practical in this case within the parameters of the parties’ agreement.” In

particular, the court found that the referee’s plan met concerns brought up by both

parties: Robert’s concern over obtaining equally sized parcels and Rickey’s

concerns over ease of identifying a boundary. Moreover, and contrary to Rickey’s

assertions, the court considered Rickey’s concerns that the plan would make it

difficult for Robert to reach the southern half of his land. The court determined that

Rickey’s complaints were not persuasive, in large part because Robert himself did

not seem concerned about getting around his land.

We find the court did not err in adopting the referee’s report. That plan

ensures both parties receive equal amounts of land—something particularly

1 Those factors include whether division is practicable, whether the resulting
division would materially diminish property value, evidence of duration of
ownership, sentimental attachments, use by owners, and contribution to taxes and
other expenses associated with use of the land.
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appropriate given the fact that the brothers contributed equal amounts of money

to obtain the land from their father’s estate. The plan makes for a clear division of

property. Robert has not expressed concern about the potential difficulties of

reaching his own land. Additionally, to the extent the factors in section 651.31 are

relevant, they also support this plan. The land is primarily only usable for pasture

and recreation and the division of property provides both parties with access to the

creek for those purposes. The division does not appear to diminish the value of

the property as a whole. Also, both brothers have sentimental attachment to their

father’s land. The court appropriately adopted the referee’s plan for the partition

of the property.

B. Owelty

Robert contends the court erred in ordering Rickey to pay half the cost for

removing the junk pile only after Robert had removed it. The court made this order

under the doctrine of owelty. Owelty is an equitable remedy used in partition

actions “to equalize the value of the property a party receives through the payment

of a sum of money from a recipient of a higher value property to the recipient of a

lower value property.” Iowa Code § 651.1(6).

Here, the court ordered Rickey to pay half of the estimated $15,000 cost to

remove the junk pile. While the junk pile no doubt reduces the value of Robert’s

property, the court’s order relies on the estimated cost of removal, not the reduction

of value of Robert’s parcel. Therefore, it does not strictly meet the definition of

owelty. However, even if we were to consider the order for fees to be paid for the

removal of the junk pile was not an owelty order, the district court had the equitable

power to order the expense of removing the jointly held junk pile to be equally
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divided. See Iowa Code § 651.2. The court found that the junk pile lessened the

value of Robert’s parcel and that both brothers had contributed to it. It was not

error to assign the cost equally between the two. It was not an error to require

payment by Rickey only after Robert removes the pile. The court’s decision was

based on avoiding the imposition of the substantial cost of removal on Robert alone

when both brothers had contributed to the pile. Ordering Rickey to pay Robert

prior to removing the junk pile would result in a windfall profit for Robert because

it would compensate him for a cost he never incurred. The cost was merely an

estimate, so awaiting a final bill before payment is appropriate. The court did not

err in its division of costs relating to the junk pile.

C. Attorney Fees & Costs

Robert claims the court erred in refusing to award him attorney fees and in

splitting the costs of the action evenly between the two parties. Attorney fees are

to be awarded to the plaintiff on partition of real property unless “the plaintiff is the

losing contestant.” Iowa Code § 651.23. Similarly, costs related to a partition

action are “taxed against the losing contestant unless otherwise ordered by the

court.” Iowa Code § 651.22.

Robert suggests he cannot be a losing contestant because the statute

contemplates only one losing contestant. Yet Iowa Code section 4.1(17) is clear

that “[u]nless otherwise specifically provided by law[,] the singular includes the

plural, and the plural includes the singular.” Here, nothing suggests that section

651 should be interpreted contrary to that instruction. Thus, “the losing contestant”

includes the plural form, losing contestants.
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The trial court declined to grant Robert an award of attorney fees and split

the cost evenly between the parties because it found “both parties were the losing

contestant since neither of their proposed divisions were adopted by the Court.”

Both Robert and Rickey sought partition in kind, but disagreed as to exactly how

the partition occurred. Rather than taking either parties’ plan, the court adopted

the referee’s proposal. Neither brother was the prevailing party. The court did not

abuse its discretion in finding Robert, as a losing contestant, did not qualify for an

award of attorney fees. Similarly, the court did not abuse its discretion in splitting

the costs of the action between both parties.

Because the court did not err in adoption of the referee’s proposed partition

of property, splitting the cost to remove the junk pile only after completion of

removal, or its division of costs and attorney fees, we affirm.

AFFIRMED.